June 4, 2008
PAUL KUCHERA, SR., APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 12, 2008
Before Judges Stern and C.L. Miniman.
Appellant Paul Kuchera is currently incarcerated at Bayside State Prison in Leesburg, serving a fifteen-year sentence for conspiracy to commit burglary and aggravated assault. In the summer of 2006 he was incarcerated at Southern State Correctional Facility in Delmont and was charged with two disciplinary infractions: *.004 (fighting) and *.803/*.207 (attempting to possess money or currency in excess of $50) in violation of N.J.A.C. 10A:4-4.1. Appellant was convicted of both offenses and was sanctioned. The Associate Administrator affirmed both convictions and the sanctions imposed. Appellant challenges this final agency action.
Although he appeals his conviction of the money offense and the sanctions imposed, appellant did not dispute his attempt to possess $100, which his wife had concealed in a card she sent to him at Southern State at his request. The mail was intercepted on July 27, 2006, and at the suggestion of Sergeant Heaton appellant wrote to Officer Davis on August 1, 2006, and explained that he asked his wife to send him the money so that he could send a birthday gift to his son. Appellant asked to have the money returned to his wife. He was charged with the disciplinary infraction the following day. The hearing officer imposed detention for fifteen days, loss of ninety days of commutation credits and administrative segregation for 120 days.
Appellant did dispute having any involvement in the fight that was found to have occurred on or about July 28, 2006, and appeals his conviction and resulting sanctions. The operative facts are these: On August 2, 2006, at about 7:30 a.m. a secretarial assistant at Southern State discovered an anonymous note in the inmate request box that stated:
Inmate Paul Kuchera has been in a fight here on 5 Unit, his body is all marked up. He's been threatening people on the unit. He said he is gonna harm the C/O on evenings.
His state # is 427755, he a real bully here on 5 Unit, he's crazy. He had a fight on the unit the other night. Look at his body, it's marked up. He's bad news.
That day Sergeant Whildin interviewed appellant, who denied having any problems with anyone and stated that he was not going to harm anyone. Upon examination at the medical department, the nurse observed an old circular bruise in the right clavicular area. She also observed a circular bruise in the left clavicular area with a red scabbed abrasion. She also found bruising to his anterior left upper arm and shoulder and an old circular bruise on the inner aspect of the right knee. Appellant's left kneecap was skinned and he had an old bruise to his left posterior calf. Appellant was placed in detention.
Early in the afternoon on August 2, 2006, another anonymous note was found on the Unit 2-Left officer's desk, which stated that "I overheard Hanson ask Hendrix ['W]ho jumped my boy[?'] Hendrix said ['M]e and ? And you ain't gonna do shit about it.[']" Sergeant Whildin questioned Brandon Hendricks about the contents of the letter and noticed that Hendricks had abrasions on his knuckles and on the top of his head. Upon medical examination, the nurse found that Hendricks had an open wound on his head and a reddened and swollen left middle-finger knuckle. Hendricks was placed in detention and charged with the *.004 infraction for fighting.
Monitoring of appellant's telephone calls disclosed a conversation that he had with his wife in which he stated that on July 28, 2006, he had "blacked out" on the softball field and "F['d] up" an inmate. He also stated that his mouth was "killing" him but that his wife "should see" the other inmate. Consequently, on August 3, 2006, Sergeant Whildin charged appellant with fighting and appellant immediately pled not guilty. Appellant did not request any witness statements or confrontation of any witnesses against him.
Appellant claimed that he got the bruises on his shoulder while playing softball and denied having problems with any other inmate. He denied owing any other inmate any money. Hendricks denied having any problem with appellant and claimed the he received the cuts on his head "from leaning into his locker during count." He also claimed that his reddened knuckle was from using medicine for wart removal, but pointed to his index rather than middle finger. When this discrepancy was called to his attention, he claimed that it was an old boxing injury.
During his interrogation by Investigator Eugene D. Johnson on August 8, 2006, Hendricks related that he heard that Christopher Lemmo in Unit 5 had been punched in the eye by appellant and that he had reported to the Central Medical Office that he had been hit in the eye playing basketball. Hendricks denied owing money to anyone. That same day Investigator Johnson spoke with the nurse who treated Lemmo and asked her to re-examine him and express an opinion regarding the cause of his eye injury. She did so and reported that the broken blood vessels in Lemmo's eye could have been caused by a fight or a basketball. Lemmo was placed in detention because of the extent of the injury to his eye and the fact that he sought medical treatment for it on July 28, 2006, the date of the reported fight.
Investigator Johnson interviewed Lemmo on August 9, 2006. Lemmo claimed that he injured his eye when he fell playing basketball and struck his head on the backboard pole. He denied being involved in a fight with Kuchera and Hendricks and denied having any problems with them. He also denied owing anyone any money and denied that any inmate owed him any money.
The following day, Investigator Johnson spoke with inmate Hanson, who had been mentioned in the second anonymous note. Hanson stated that appellant was his friend and that he spoke with Hendricks regularly. He denied asking Hendricks "Who jumped my boy?" He admitted that he knew that appellant "had a busted lip," that Hendricks had cuts on his head and that Lemmo had a black eye. Hanson denied any knowledge of the three fighting and hypothesized that they received their injuries "as a result of horse play."
In his report dated August 10, 2006, Investigator Johnson concluded:
[I]t is believed that inmates Kuchera, Hendricks, and Lemmo were involved in a physical altercation based on the information that was received in the anonymous letters, inmate Kuchera's telephone conversation, and the injuries that all three inmates sustained which are consistent with persons who had been involved in a fight. Furthermore, it is believed to be no coincidence that on the day of the fight (July 28, 2006), inmate Lemmo reported to CMA to be examined for a black eye that he alleges he sustained from playing basketball. However, based on all of the available information, the one-hundred dollar ($100) bill could not be linked as the cause of the physical altercation.
While the investigation was proceeding, Hearing Officer Kathy Ireland began the courtline adjudication of the *.004 charge. On August 4, 2006, it was postponed for additional investigation information and for witness statements requested by appellant. On August 7, 2006, it was further adjourned for additional investigation information and because appellant sought a polygraph examination. On August 9 and again on August 10, 2006, the hearing was postponed for additional investigation information. It was postponed for the last time on August 14, 2006, to permit review of all of the investigation reports and statements. At appellant's request, counsel substitute Connelly was appointed and the hearing was concluded on August 15, 2006. On the same day as the finding of guilty on the money offense, Ireland found appellant guilty of the *.004 fighting offense and imposed additional sanctions of detention for fifteen days, loss of 120 days of commutation credit and administrative segregation for 120 days. The Associate Administrator on August 16, 2006, upheld that conviction and sanctions imposed on appellant. This appeal followed.
Appellant raises the following issues for consideration by us:
POINT I: BOTH INSTANCES OF THE ADJUDICATION OF THESE CHARGES: *.004 AND 803/207, THE HEARING OFFICER FAILED TO ADHERE TO [N.J.A.C.] 10A STANDARD OF DUE PROCESS[.] THIS DENIED THE INMATE HIS RIGHT TO DUE PROCESS ESTABLISHED FOR FAIRNESS IN THE DISCIPLINARY PROCESS.
POINT II: APPARENT FORGERY OF THE OFFICIAL CHARGE OF *.004 AND THE CONFISCATION SHEET FOR THE *803/207 DENIED APPELLANT HIS CONSTITUTIONAL AND [N.J.A.C.] 10A RIGHT TO DUE PROCESS.
POINT III: EVIDENCE PRESENTED AGAINST THE INMATE FAILED TO MEET THE SUBSTANTIAL EVIDENCE THRESHOLD SET FORTH IN [N.J.A.C.] 10A AND CASE LAW.
POINT IV: DENIAL (RUBBER STAMPING) OF THE APPELLANT[']S REQUEST FOR POLYGRAPH VIOLATED HIS RIGHT TO DUE PROCESS.
POINT V: DENIAL (RUBBER STAMPING) OF THE INMATE[']S APPEAL VIOLATED HIS RIGHT TO DUE PROCESS.
N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
We conclude that appellant's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). The final administrative decision issued by the Department of Corrections is supported by substantial, credible evidence in the record. See Henry, supra, 81 N.J. at 579-80 (1980). Although the evidence was circumstantial, circumstantial evidence can be as satisfying and certain as direct evidence, as it is in this case. State v. Koskovich, 168 N.J. 448, 480-81 (2001) (circumstantial evidence has probative value as long as there is a logical connection between the evidence and a fact at issue). Moreover, appellant was provided with adequate due process protections in the processing and hearing of the charge filed against him. See Avant, supra, 67 N.J. at 525-33. We add only the following comments.
The delay in serving the *.004 charge was a result of the failure of other inmates or the victim to report the fight to prison officials. Once they learned of it on August 2, 2006, they acted quickly and served the charge on August 3, 2006. The charge was timely under N.J.A.C. 10A:4-9.2. The delay in the proceedings was reasonable in light of the ongoing investigation during which the prison officials received little cooperation from the other inmates.
With respect to the attempt to possess money, appellant asserts that there was a discrepancy between his copy of an Inmate Receipt, Contraband Seizure form and the one marked into evidence at the hearing. We have examined both copies of this document, one marked Da1 and the other marked Ra71 (the one marked into evidence) and can discern no discrepancy between the two copies of this document. We also find no discrepancy between the signatures on the first and second pages of the disciplinary report, Ra9 and Ra10. We find no other irregularities in any of the paperwork relating to either infraction.
Lastly, a prisoner does not have a right to a polygraph test upon his or her request. The decision to order such a test is committed to the discretion of the prison administrator. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). We find no abuse of that discretion in the face of the substantial circumstantial evidence of appellant's guilt.
To conclude, the Associate Administrator's determination was not arbitrary, capricious and unreasonable. Thus, appellant's conviction of both infractions is affirmed as are the sanctions imposed.
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